Indoor Tanning Association sees red with tax proposal, new regulations

March 1, 2010

The feds are turning up the heat on the tanning bed industry, with two major regulatory agencies and Congress getting into the act. Late last year, senators developing healthcare legislation dropped a proposed tax on cosmetic surgery and substituted a 10 percent tax on indoor tanning services.

Key Points

Late last year, senators developing healthcare reform legislation dropped a proposed tax on cosmetic surgery, after vigorous protests by the American Academy of Dermatology (AAD) and others, and substituted instead a 10 percent tax on tanning bed services.

That caused the Indoor Tanning Association (ITA) to see red, complaining the tax was unfair, that it would devastate thousands of small businesses nationwide, that it was based on misguided information, and that it wouldn't raise nearly as much as its advocates predicted. While healthcare reform legislation was then delayed following the election of Sen. Scott Brown (R-Mass.), causing Democrats to lose their 60-vote "super-majority," that tax still has a good chance of being included if lawmakers find a way to pass that bill. That, however, is just the beginning.

On Jan. 26, the ITA agreed to a settlement with the Federal Trade Commission (FTC) regarding health and safety claims about indoor tanning. Then, just two days later, it was reported that the Food and Drug Administration (FDA) is considering tougher warnings about the use of artificial indoor tanning. The question apparently is what form those warnings will take, not whether they will be required.

All of these developments come on the heels of warnings by the World Health Organization (WHO) in July that tanning beds are a definitive cause of cancer - a development that certainly added credence to AAD's campaign to substitute the tax on indoor tanning for the original tax on elective cosmetic surgery.

"Contrary to claims in the association's advertising," the FTC said in its complaint, "indoor tanning increases the risk of squamous cell and melanoma skin cancers." The association has agreed to a settlement that bars it from "any further deception," the agency said.

"The messages promoted by the indoor tanning industry fly in the face of scientific evidence," said David C. Vladeck, director of the FTC's Bureau of Consumer Protection. "The industry needs to do a better job of communicating the risks of tanning to consumers."

Advertising actions

The FTC complaint alleged that in March 2008, the ITA launched an advertising campaign designed to portray indoor tanning as safe and beneficial. The campaign included two national newspaper ads, television and video advertising, two Web sites, a communications guide, and point-of-sale materials that were provided to association members for local market distribution.

The FTC said the campaign falsely claimed that indoor tanning is approved by the government; that it is safer than tanning outdoors because the amount of ultraviolet light received is monitored and controlled; that research shows that vitamin D supplements may harm the body's ability to fight disease; and that a National Academy of Sciences study determined that "the risks of not getting enough ultraviolet light far outweigh the hypothetical risk of skin cancer."

Under the settlement, the association is prohibited from making those representations. In addition, ads making claims about the safety or health benefits of tanning bed use are required to clearly and prominently state the following: "NOTICE: Exposure to ultraviolet radiation may increase the likelihood of developing skin cancer and can cause serious eye injury."

Ads that include vitamin D claims must include this additional disclosure: "NOTICE: You do not need to become tan for your skin to make vitamin D."

On the FDA front, the agency says it will hold a public hearing this month (March) to consider stricter regulations for tanning, which will include tougher warnings and the reclassification of tanning beds to a category higher than the current class 1, which covers low-risk medical devices.

Currently, the FDA's Web site includes a special section devoted to indoor tanning. There, the agency declares: "The FDA wants consumers to know that UV radiation in tanning devices poses serious health risks" that can include skin cancer, skin burns, premature skin aging and short- and long-term eye damage.

The ITA says it will continue to fight the stricter regulations.

Bob Gatty, former congressional aide, covers Washington for businesses specializing in healthcare and related issues. Contact him at bob@gattyedits.com
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